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The
F.A. Hayek Memorial Lecture
Austrian Scholars Conference
Auburn, Alabama
2001
Two Constructions of Libertarianism
Chandran Kukathas
I
Libertarians believe that all individuals are entitled to live as
they choose, free from
interference by other persons or by the state. They also believe
that in the absence of such
interference, whether by government or other agents of the state
intent on designing or
planning for society as a whole, order will nonetheless prevail.
Given the freedom to
contract and exchange, markets will coordinate the production and
distribution of goods
— and indeed do so better than any other institution can. But it
is the first belief that is
theoretically distinctive, and distinguishes libertarians from
others, such as free-market
utilitarians like Jeremy Bentham. For libertarians think that what
is most important is to
2
defend the freedom of individuals to live without being victims of
aggression by others
— against their persons, or against the property they have rightly
acquired.
Two early statements by thinkers held in high esteeem in the
libertarian tradition put
the point very plainly. The Leveller, Richard Overton, in ‘An
Arrow Against All
Tyrants’, wrote:
To every individual in nature is given an individual property by
nature, not to be
invaded or usurped by any: for everyone as he is himself, so he
hath a selfpropriety,
else could he not be himself, and on this no second may presume to
deprive any of, without manifest violation and affront to the very
principles of
nature…
In other words, all individuals are self owners. And
self-ownership carries with it the
freedom to own property. The most famous statement of this view is
Locke’s:
Though the earth, and all inferior creatures be common to all men,
yet every man
has a property in his own person. This nobody has any right to but
himself. The
labour of his body, and the work of his hands, we may say, are
properly his.
Whatsoever then he removes out of the state that nature hath
provided, and left it
in, he hath mixed his labour with, and joined to it something that
is his own, and
thereby makes it his property.’
In short, all individuals must have liberty; but only that liberty
that is consistent with a
respect for the liberty and property of others. And this is the
basis of the libertarian
account of the justification for, and role of, the state. If
individuals own themselves, and
have a right not be aggressed against by others, no government is
legitimate unless it has
3
the consent of the people. (For some libertarians, it is then
simply a matter of logic to
show by inference that no government is legitimate.) For those libertarians
who think
there is a role for government, its purpose cannot be to improve
people, or attend to their
welfare, or satisfy their needs, or give them what they deserve.
At most, its purpose is to
protect individual liberty against invasion by others, whether at
home or from abroad.
Otherwise, it should leave people alone. What could be simpler?
Yet matters may not be quite so straightforward. For there is more
than one kind of
society that could issue from such simple beginnings. Indeed,
there are at least two very
different societies which might be constructed out of such
libertarian first principles. And
it must be asked, first, which of these is the one that
libertarians ought to prefer; and,
second, whether either of them is wholly acceptable from a
libertarian point of view. To
be a libertarian is to attach especial importance — if not
overriding value — to liberty.
Which, if either, of the societies produced by libertarian
principles is acceptable from the
standpoint of liberty? That is the question to be explored here.
II
Let us begin by imagining the first society, called the Federation
of Liberty. In this
society it is recognized that aggression is fundamentally wrong,
for ‘no man or group of
men have the right to aggress against the person or property of
anyone else.’ Aggression
is recognized to mean ‘the initiation of the use or threat of
physical violence against the
person or property of someone else.’ This society recognizes ‘the
absolute right to private
property of every man; first, in his own body, and second, in the
previously unused
4
natural resources which he first transforms by his labour.’ In
other words, it recognizes
two central axioms: the right to self-ownership and the right to
‘homestead’.
Now the world is a diverse place, and people have different ideas
about what is good
and about what is right. The intuition libertarianism as a moral
doctrine seeks to capture
is the thought that when people differ in their ideas about what
is good or right it is wrong
to try to force people to accept one version or another,
particularly if they are prepared
simply to go their separate ways. Aggression — the initiation of
the use or threat of
physical violence — is never defensible. The use of force is
permissible only in defence
of one’s person or property.
But the world being a diverse place, it will include not only
people who accept the
principles of libertarianism but also those who don’t. What should
be libertarianism’s
attitude to those who disagree with libertarian principles? In the
Federation of Liberty the
answer is that the principle of libertarianism should be extended
to cover not simply the
treatment of those who believe in it but the treatment of all
persons. That is to say, it
would tolerate in its midst even those who do not accept the
principles of libertarianism.
Such persons are free to go about their business unimpeded,
provided that they do not
aggress against others. If they are numerous enough, they might
form their own
communities or groups, and live by their own lights. If they will
not aggress against
libertarians, then libertarians will not aggress against them.
The consequence of this attitude in the Federation of Liberty
might well be that there
are quite a few groups or communities which not only disregard but
directly repudiate
libertarian principles. These may be communities in which the
right to hold private
property is not recognized, or in which the freedom of the
individual to dissent from the
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community’s powerful authorities is not respected — or even
conceded. Indeed, the
freedom of the individual to leave the community or group may not
be accepted, so that
many people are effectively held within the community against
their will. And this is not
to mention those who are kept within these communities in
ignorance of any possibility
of leaving for a society in which they might make use freedoms
they do not enjoy here.
But in the Federation of Liberty, those libertarians who do hold
to libertarian
principles will do nothing, for they cannot aggress against others
except in self-defence.
Or at least, that is how the principles of libertarianism are
understood here. It simply is
not permissible to initiate the use of force against others who
are not threatening to use
force against you or your property. Here libertarians really can
do very little about those
who repudiate libertarianism and work to perpetuate ways of living
that do not respect or
value liberty. They may, for example, attempt to inform or educate
those who are
ignorant of their libertarian rights that they do not have to
remain among people who
have no regard for them. But if those who control the communities
in which libertarian
rights are dishonoured do not permit this, libertarians are not at
liberty to march in and
force them to allow everyone to listen to the outsiders.
Libertarians might be free to
broadcast messages — on Radio Liberty or on the Libertarian News
Network — but
cannot demand that their signals not be blocked or, for that
matter, that the targets of their
transmissions be allowed to watch and listen.
If the account so far is right, there could be a great deal of
unfreedom in the Federation
of Liberty. The principle of non-aggression in this society
produces a society which is
characterised by a non-aggression pact among people, some of whom
do, and others of
whom do not, accept the principles of libertarianism. But in fact
such a society might
6
exhibit even less liberty still. For under this understanding of
libertarianism it is quite
possible, in principle, for the Federation of Liberty to be made
up of only a minority of
persons who accept the principle of non-aggression, if a majority
of persons live in
groups where aggression within the group is condoned or unchecked.
Indeed it is
possible, in principle, that no one accepts the principles
of libertarianism. The principle of
non-aggression operates only between groups or communities, since
no one will use force
to intervene in the activities of those whose actions do not
aggress against them or their
property.
But can this really be a libertarian society? One reason it might
be alleged that it is not
is that this is a society which does not so much respect
individual rights as uphold group
rights. And there is nothing in the libertarian canon that
requires the recognition of the
rights of groups. Yet in the Federation of Liberty there are no
group rights. None of the
communities which comprise it may claim anything from others on
the basis of any group
status or collective identity. Groups have no right even to keep
their members within their
borders; and if those who escape from groups they find oppressive
find sanctuary among
others outside, no one is under any obligation to force them to
return and no one has any
right that they be returned. No one may use force against these
individuals to make them
live among those with whom they have no wish to associate. Though,
equally, no one
may use force to extricate them from communities which deprive
those persons of liberty
or of the knowledge that they have rights. Only individuals have
rights; groups do not.
Though evidently this does not stop groups from having power; or
prevent individuals
from becoming powerless.
7
In such a society individuals not enjoy liberty for either of two
reasons. In the first
instance, they might not enjoy freedom because they have no
longing for it, having been
raised in their associations or communities with no knowledge that
this is something
desirable. Some forms of religious education do this quite well.
And we know that in
many societies particular classes of people are raised to
understand that social roles are
given by nature. Women, for example, have in many places been
raised to accept that
they were not free to choose the path their lives must take. In
such circumstances, people
do not enjoy freedom because neither circumstances nor their
fellows have revealed to
them that freedom is desirable. (Of course, many may naturally
seek liberty. I do not wish
to deny this. But for the purposes of my argument it is sufficient
to point out that some
will not be possessed of a natural longing for freedom powerful to
overcome the effects
of socialisation to the contrary.)
The second reason individuals might not enjoy freedom in a society
like the
Federation of Liberty is that they are prevented from doing so. In
such cases, individuals
might long for freedom but not be able to attain it because they
are forcibly prevented
from doing so. Some might be indentured labourers working to pay
off a debt of which
they will never be rid because they have accepted punitive terms
when borrowing. (In a
sense they might have been forced to do so, since the monopoly
powers granted to
lenders in the community leaves borrowers no option of choosing
among competitive
interest rates.) In other cases, people might have inherited debts
because custom requires
that debts be passed on to children. At the extreme case, people
might be unfree because
they are literally enslaved and slavery is acceptable in the
community — which is a
8
community that does not believe in libertarian principles. Such
people might want to
leave — it is almost certain that they would — but they are
prevented from doing so.
Such unfreedom is possible in the Federation of Liberty because
the practice of nonaggression
is understood to require that people not intervene in the
activities of others
except in defence of their own rights and property. Thus while
those whose liberty has
been infringed may be entitled to resist those who are trying to
impede them, no one else
may aggress against those who are violating the rights of others.
In any case, most people
are reluctant to get involved with those parts of the society
where liberty is less than
completely enjoyed: free trade with all, but entanglements with
none is the catch-cry that
would be heard — except that people minding their own business
usually have no catchcries.
Though people crying out for help find this less than comforting.
Now, one way around this problem for the defenders of the
Federation of Liberty as a
genuinely libertarian society would be to point out that it is
always open to an individual
to appoint an agent — or indeed many agents — to act on his
behalf. Anyone deprived of
his liberty or aggressed against can appoint agents to act on his
behalf to protect his
rights. These agents would not be aggressing against a third party
without cause, for they
are agents of the principal acting in self-defence. If this were
the case, it would be
justified in the Federation of Liberty for many of those whose
rights have been violated
to be rescued from communities or persons guilty of aggression
against others. But this
does not resolve the problem of what happens to those who are
unable to appoint agents
to act for them. Even in a world of entrepreneurial would-be
agents looking for principals
needing to be freed, such potential agents have no right to demand
that those they suspect
of violating rights allow them to inspect their premises or their
records. Such would-be
9
agents may not use force to gain access to knowledge of rights
violations, or to gain
knowledge of the wishes of people who might want to employ their
services. Or at least,
not in a society like the Federation of Liberty. For it does not
condone the initiation of the
use or threat of physical force against the person or property of
anyone. Yet, perversely,
this turns out to be a society in which many people end up being free
to use force.
The Federation of Liberty might in fact turn out to be a
federation of not much liberty
at all. And from a libertarian point of view this might be a good
reason to reject its
understanding of the principle of non-aggression. Perhaps the
principle of non-aggression
properly understood will give us a society libertarians can
commend; but that may require
a very different understanding or construction of that principle.
III
So let us imagine a second society, this one going by the name the
Union of Liberty. In
this society it is recognized that aggression is fundamentally
wrong, for ‘no man or group
of men have the right to aggress against the person or property of
anyone else.’
Aggression is recognized to mean ‘the initiation of the use or
threat of physical violence
against the person or property of someone else.’ This society
recognizes ‘the absolute
right to private property of every man; first, in his own body,
and second, in the
previously unused natural resources which he first transforms by
his labour.’ In other
words, it recognizes two central axioms: the right to
self-ownership and the right to
‘homestead’.
10
Now the world is a diverse place, and people have different ideas
about what is good
and about what is right. The intuition libertarianism as a moral
doctrine seeks to capture
is the thought that when people differ in their ideas about what
is good or right it is wrong
to try to force people to accept one version or another,
particularly if they are prepared
simply to go their separate ways. Aggression — the initiation of
the use or threat of
physical violence — is never defensible. The use of force is
permissible only in defence
of one’s person or property.
But the world being a diverse place, it will include not only
people who accept the
principles of libertarianism but also those who don’t. What should
be libertarianism’s
attitude to those who disagree with libertarian principles? In the
Union of Liberty the
answer is that the principle of libertarianism is not one that
people may choose not to
adopt. The principle holds for all persons, in their dealings with
all persons. What is the
point, after all, of a moral principle that does not apply to all?
But what is the implication of this for the kind of society that
will emerge out of such
a construction of libertarianism? It ought to be noted at the
outset that it may not mean
that no non-libertarian communities or associations will exist in
such a society. A crucial
dimension to the rights libertarianism prescribes is the freedom
of persons to waive their
rights — or at least, some of their rights.1 Some persons might
therefore agree with one
1 As an aside, let me note that some rights may
not be waivable. One may not be entitled to alienate one’s
right to liberty such that one can sell oneself into slavery. The
principle of non-aggression means that no
performance of an action can be compelled, even if performance has
been contracted. Though, of
course, the party injured by non-performance may have a just claim
to compensation. This means that
anyone selling himself into slavery cannot alienate his right to
break the contract by refusing to perform
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another to form associations in which they live, voluntarily, by
non-libertarian principles.
They might agree to hold their property in common and limit
private ownership; and they
might place restrictions on speech, or require all to abide by
strict rules limiting what
each may do and authorising some to hold considerable power the
others. What is
different about the Union of Liberty, however, is that, unlike the
Federation of Liberty,
no one is permitted to live without liberty unless he has
explicitly relinquished those
particular liberties he lacks.
The difference this makes is a substantial one — more so than it
might at first appear.
For in the Union of Liberty, associations not founded on the
consent of the governed may
not operate. This means that certain kinds of associations or
communities cannot exist,
for the only legitimate associations are voluntary associations.
Associations or
communities not founded on the principle of voluntary association
cannot have a place in
the Union of Liberty. In the Federation of Liberty such
communities or associations had a
place insofar as the principle of liberty meant a prohibition on
intervention which allowed
such communities to operate. But in the Union of Liberty the
principle of liberty prohibits
the operation of communities which do not respect the principle of
liberty.
In this society, then, it would not be possible, say, for certain
religious groups to
operate, since they effectively repudiate the principle of liberty
by denying their members
any right to acquire or hold property, restricting their freedom
to worship, denying them
freedom to move about, and failing to make these members aware
that they have rights to
as directed, even though he would have then to compensate the
person with whom he made the contract
of ‘slavery’. In effect, this means that slavery contracts cannot
have any force.
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reject their membership of such a society. The Hutterites might be
an example of such a
group. Similarly, communities of aboriginal peoples who do not
recognize the principle
of liberty could not be allowed to operate unless all their
members willingly agreed with
the terms of the association.
In fact, in the Union of Liberty there could not be any states or
provinces that
restricted liberty, say by imposing tariffs, or prohibiting the
use of certain drugs, or
mandating particular educational requirements. The standard of
liberty is a standard
which has to hold not only for society as a whole, but for all the
societies within that
society. People may not be deprived of their liberty without their
consent. No authority
can take it upon itself to deny people their freedom; and any
authority which tried to do
so has to be subject to censure.
The problem is that there are a great many communities and
associations which
operate without respecting the principle of liberty, or which
violate the requirement of
consent. Most obviously, most dealings with children invariably
involve some restriction
of their liberty, and usually without children’s consent. Parents
routinely deprive their
children of liberty, either by requiring some actions or
proscribing others. Parents, in
conjunction with their communities, generally work assiduously to
educate their children,
not only so that they might accumulate a stock of knowledge but
also to try to ensure that
they will come to hold particular values as adults. Educators try
not only to develop in
children the skills they will need to be able to earn a living and
to fulfil their desires, but
also to inculcate in them particular desires — and, of course, to
teach them that some
desires are unworthy or immoral. The younger the children, the
greater the interference
with their liberty, and less often their consent is sought.
13
Often parents and communities go further in their efforts to shape
and prepare children
for later life. Some religious or cultural traditions require that
children be physically
transformed, whether through forms of genital mutilation or in
ritual scarring. Children
are thus subject to a variety of physical treatments, from
footbinding to circumcision, in
the interests of their future welfare. All without their consent.
Equally, in some traditions
children do not enjoy liberty not because they are forced to
undergo particular rituals but
because certain treatments are withheld from them. Parents may
believe, for example,
that blood transfusions are morally repugnant or that vaccinations
are a violation of
bodily integrity, and that their children should therefore be
spared such interventions.
Their children would thus grow up not only without undergoing
these medical treatments
but also with no knowledge of them. Again, consent is not sought.
It is worth bearing in mind here that not only can the treatment
of children vary from
community to community, or tradition to tradition, but the
understanding or definition of
childhood can differ substantially from place to place. Children
are routinely deprived of
liberty without their consent; but the ‘age of consent’ varies
considerably as well.
Children do not fall into a ‘natural’ category, whose membership
is obvious or
uncontentious.
But age is not the only basis upon which communities might
restrict the application of
the principle of liberty. Some communities might do so on the
basis of gender or ethnicity
or religion or sexuality. Thus women might be denied the freedom
to seek an education,
or non-natives might be forbidden to own land, or those with
particular sexual
orientations might be prohibited from some forms of employment or
from entering into
14
certain contracts. Liberty may be restricted in many ways and for
a great variety of
reasons.
In the Union of Liberty, however, such restrictions cannot be
tolerated, for they run
counter to the spirit of liberty which must govern the society as
a whole. Liberty can be
given up by those consenting to the actions of those who choose to
deprive them of it.
But it cannot be taken away. And if a free society is to be
preserved, those who would
deprive others of liberty must not be permitted to do so. Liberty
must be enforced if a
libertarian society is to prevail.
The implications of this outlook, however, need to be recognized.
The first, and
fundamental, implication is that there can be only one
authoritative understanding of
liberty. While people may in fact have different views about
liberty, only one view of
what liberty means and what liberty demands can provide the
standard by which conduct
is judged. Second, and following from this, there cannot be a
multiplicity of authorities
with the right to set standards of conduct. If there were more
than one authority, there
could in principle be more than one understanding of liberty.
Indeed, there could be
authorities which would compromise liberty in favour of other
values. In a libertarian
society, however, liberty must be pre-eminent. And in the Union of
Liberty, since all
societies within that society must uphold liberty, there must be a
single, authoritative,
understanding of liberty or else the variation in interpretation
of freedom’s meaning could
leave liberty in many places honoured only in name.
A further implication follows from this. The Union of Liberty is a
society in which the
principle of non-aggression — prohibiting the initiation of the
use of physical violence —
does not rule out but endorses intervention by third parties to
end, or avert, aggression by
15
others. This means it is permissible to intervene in the workings
of communities or
associations which do not respect libertarian principles, and
whose members have not
waived their libertarian rights. It will not matter if the
community in question asserts,
through its authorities, that outsiders have no jurisdiction
within its borders or over its
members, or that it is improper for outsiders to aggress against
them when they have not
themselves been aggressed against. For it is enough that the community
is held, by the
outsiders, to be not a voluntary association but rather one in
which some members are
deprived of their libertarian rights without their consent.
The implication of this, however, is quite serious. Though it will
be necessary to look
more closely into the matter to see why. If intervention in the
affairs of people who have
not aggressed against us is permissible — to stop aggression
within their own community
— this must be either because anyone may determine whether or not
intervention is
justifiable, or only when it is authorised as lawful to intervene.
In the Union of Liberty, it
must be the case that intervention is permissible only when it is
lawful — and authorised
as such. I say this because I am assuming that a libertarian
society is a society under law.
In the Federation of Liberty, there are many communities and, so,
many systems of law;
and the prohibition against intervention means that some of the
systems of law will not be
libertarian in character, since they condone aggression against
persons and their property.
In the Union of Liberty, if intervention is permissible to stop or
avert aggression by some
against others, it must be permissible only according to law (or
else the Union of Liberty
would not be a society that operates under law). But what law is
this?
The law in question here cannot be the minimal rules of
confederation that describes
the Federation of Liberty, which permit each community to run its
own affairs — even if
16
in violation of the principles of libertarianism. For these
minimal rules do not permit
intervention — aggression, or the initiation of force — except in
cases of self-defence.
But the Union of Liberty condones, or even mandates, intervention
— precisely to stop
aggression, or the initiation of force. Its laws must therefore
reach further, specifying not
simply how communities with different laws must relate to one
another, but what laws
every community must have. It must prescribe, in other words, what
standards every
community must meet if it is to pass the libertarian test, for no
non-libertarian community
may operate.
Now the implication of this is that there will be a central
judicial body with final
authority. For it cannot be left up to each community to determine
whether it meets the
libertarian test – or we would be back to the situation in which
some communities fail to
meet the standards of libertarianism (but simply claim to have
done so). This judicial
body will have the authority to determine when intervention is
permitted to stop or avert
aggression. It will also have the authority, since there is no
other superior judicial power,
to determine who may rightly intervene — to stop or avert
aggression.
The problem we face now, however, is that there is in existence in
the Union of
Liberty a strong central authority. This judicial power will quite
possibly — indeed, is
more than likely to — be captured by the most powerful groups or
communities, who will
try to influence its understanding of what libertarian law
prescribes, and its determination
of where or with whom the power to intervene should lie.
The Union of Liberty might in fact turn out, then, to be a union
of not much liberty at
all. For it could end up a union in which a great power ends up
being established — one
capable of depriving people of their wish to live by dissenting
moral standards, even if
17
they are dissenting libertarian moral standards. A
libertarian orthodoxy is still an
orthodoxy. And it must be asked whether any orthodoxy in power is
really an ideal of
libertarian construction.
IV
If the reasoning behind these two constructions of libertarianism
is sound, the choice
confronting libertarians is an invidious one. For neither interpretation
of the libertarian
first principle produces an outcome which seems particularly
hospitable to liberty. The
Federation of Liberty can, in principle, turn out to contain no
communities of that
federation which actually value or respect liberty; and even
slavery might have a lawful
place within it. The Union of Liberty, on the other hand, can, in
principle turn out to be
society ruled by a strong authority with little respect for
dissenting moral traditions,
including some self-styled libertarian moral traditions. Unless
some more promising
construction of libertarianism can be found to come out of its
first principles, it looks as if
a choice is going to have to be made.
Alas, as I see it, no other construction of libertarianism is
possible. The two
alternatives described here occupy all the available conceptual
space; and there is no third
way, theoretically speaking. Libertarians must bit one bullet or
another.
Given this necessity, I would argue that we should opt for the
Federation of Liberty
rather than for the Union. In the time that remains I will offer a
defence of this choice.
Though this defence will be incomplete, since there is surely more
to be said on both
18
sides. Let me begin, however, by considering what reasons might be
advanced in defence
of the Union.
The strongest argument available to the Unionist is that the
Federation of Liberty fails
to respect liberty because it will tolerate unfreedom, or even slavery,
in its midst. Such a
society can, in principle, be a society of communities none of
which endorses or honours
libertarian principles. For this reason a libertarian Unionist
would argue that a genuinely
libertarian society is one in which libertarian principles are
upheld — or enforced —
everywhere. This at least will ensure that liberty is not
extinguished, for aggression will
always be capable of being met by a superior power with the
capacity to protect freedom.
Slavery, or other institutions limiting or dishonouring freedom,
would be prohibited
without equivocation.
As a Federalist, however, I cannot help but look upon the
Unionist’s claims with a
measure of scepticism. The case for the Federalist position is
grounded in a conviction
that power ought not to be entrenched. While authority may be
necessary in human
arrangements since disagreements have to be settled, no power
should be established as
the final court of appeal from which no dissent is possible.
Indeed, if anything is
fundamental to libertarianism it is the conviction that dissenters
are tolerated or allowed
to go their own way — free to exit from arrangements they find
intolerable themselves.
Disagreements should be addressed through efforts at persuasion
rather than joined with
force. A federation of societies is a society which respects this
outlook, for while it may
contain within it many authorities, none is pre-eminent, and none
may subordinate the
others, or claim a right to control its members — even if some may
exercise enormous
power in fact. What such a society refuses to do is bow to the
temptation to control the
19
abuse of power by creating — or condoning the creation of — a
greater power to enforce
right.
In the end, the establishment of power, even the power to do good,
does not guarantee
that good will be done. For that matter, there is no guarantee
that the Union of Liberty
will protect liberty, or even prohibit slavery. It is worth
remarking that the most
libertarian constitution the world has known tried to pretend that
slavery for some was
not inconsistent with the ideal of freedom for all. And the most
notable defender of the
idea of a Union of Liberty was prepared to place the principle of
Union above the
principle of liberty, since he would rather preserve slavery than
see the Union fall.
So I defend the Federation against the Union. The choice is not,
in the end, a happy
one. But philosophical choices often are of this nature, since
theory frequently leads us to
reductios which are, if not absurd, unhappy or repugnant. One can
only hope that in the
real world such dilemmas will be dissolved in good measure by
civility and good will,
even if they cannot be resolved purely by the power of reason.